Remove victimless crimes from statutes to concentrate on real crime

Central to any free and open society is the concept of law. Proper laws acknowledge the boundaries between people that we all recognise. And respect for such law is vital. But for laws to be respected they must be worthy of respect. While most people are happy to honour the rights of others, conflict arises when legislation impedes or tramples on what people see as their own private affairs.

Respect for law diminishes each time new legislation is passed which the government knows will be violated by millions of people. It is one thing to legislate matters like theft and entirely another to restrict activities like smoking on private property, such as in restaurants or bars. Smokers continue to ignore the legislation and in many places they are encouraged to do so by the owners of these establishments. Anti-smoking legislation turns millions of generally law-abiding citizens into law-breakers.

When legislation tramples on the private rights and lives of citizens it encourages disrespect for law as a concept. When first proposed, the smoking legislation was criticised by opponents because it was inherently unenforceable. On adoption of the legislation Police Commissioner Selebe said basically the same thing. He made it clear that the police had neither the resources nor the inclination to enforce such legislation particularly since, in a crime-ridden society, they had more important things to do.

But already damage has been done. Respect for law as a concept has been diminished. So what, some people may ask? The answer is that it is important that everybody should believe that the law should always be obeyed. Improper laws inculcate a system of values in the people that tell them that law itself is nothing more than the arbitrary whims of people who happen to hold power. The breaking of laws thus becomes commonplace.

But in between improper legislation there are laws that are worthy of respect: laws that protect lives, liberties and property. Unfortunately once a culture of law breaking is encouraged by unwise legislation it carries over all too easily to laws that are absolutely necessary if we are to live in a humane and civilised society.

Improper legislation, whether it is grotesquely intrusive like apartheid or unenforceable and annoying like the smoking laws, always leads to consequences further down the road. Once law breaking becomes commonplace and widely accepted, the distinctions between good and bad laws begin to fade.

The answer is not found in a vigorous enforcement of improper laws but in their repeal. Bad principles do not become good simply because they are enforced. In fact, harsh enforcement of legislation that is not generally considered to be legitimate will only compound the problem, the same way each wave of enforcement of apartheid compounded the resistance to the system.

Too many politicians take legislation lightly. They do not realise that they must walk a fine line. We need laws to protect legitimate rights like life, liberty and property. But when we over-regulate we put these legitimate rights at risk. Laws, like taxes, can easily be overdone. Taxes that are set too high encourage tax avoidance, discourage entrepreneurship, encourage capital flight and ultimately reduce tax revenues. Laws that over-regulate needlessly turn citizens into criminals and encourage a culture of law breaking. Unfortunately once that culture is created the distinctions between proper and improper legislation fades and all of us are worse off as a result.

The first and most important, and some would say only function of government is the protection of the lives, liberty and property of citizens. And there is virtually unanimous agreement that coercion may be necessary to accomplish this. After all, as Herbert Spencer noted: "Be it or be it not true that Man is shaped in iniquity and conceived in sin, it is unquestionably true that Government is begotten of aggression and by aggression."

The prevention of criminal acts that violate rights is at the core of the justification of government's existence. But when government is seen as a vehicle to solve every social problem or resolve every conflict of values then the temptation to legislate excessively is impossible to resist. A chorus of special interest groups all descend on parliament singing the same tune: there ought to be a law. And parliament complies. But the core values of government become lost or hidden beneath ever-growing layers of legislation. The seeming paradox in all of this is that the greater the level of legislation the less respect there is for law. It is not just a paradox but a tragedy as well. And in general we would all be better off if parliament spent more time repealing legislation and less time passing new bills.

Source: Jim Peron is a freelance writer. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation.

FMF Feature Article / 21 August 2007